IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

WRIT PETITION No.2150 of 2025

Between:

DR. M. PENCHALAIAH, S/O. VENKATAIAH, AGED. 61 YEARS, DM

AND HO, NELLORE (UNDER ORDERS OF TRANSFER), NELLORE

DISTRICT, ANDHRA PRADESH STATE.

...PETITIONER

AND

STATE OF ANDHRA PRADESH, REP. BY ITS SPECIAL CHIEF

SECRETARY TO GOVERNMENT, HEALTH, MEDICAL AND FAMILY

WELFARE DEPARTMENT, SECRETARIAT BUILDING, AMARAVATHI,

GUNTUR DISTRICT AND 4 OTHERS.

...RESPONDENTS.

DATE OF ORDER PRONOUNCED : 28.02.2025

SUBMITTED FOR APPROVAL :

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

___________________________

JUSTICE SUBBA REDDY SATTI

Page 2 of 16

* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

+ WRIT PETITION No.2150 of 2025

% 28.02.2025

WRIT PETITION No.2150 of 2025

Between:

DR. M. PENCHALAIAH, S/O. VENKATAIAH, AGED. 61 YEARS, DM

AND HO, NELLORE (UNDER ORDERS OF TRANSFER), NELLORE

DISTRICT, ANDHRA PRADESH STATE.

...PETITIONER

AND

STATE OF ANDHRA PRADESH, REP. BY ITS SPECIAL CHIEF

SECRETARY TO GOVERNMENT, HEALTH, MEDICAL AND FAMILY

WELFARE DEPARTMENT, SECRETARIAT BUILDING, AMARAVATHI,

GUNTUR DISTRICT AND 4 OTHERS.

...RESPONDENTS.

! Counsel for Petitioners : Sri P.V.Krishnaiah

^ Counsel for Respondents : Sri K.Ramalingeswara Rao

GP for Services-II

Sri G.V.S.Kishore Kumar

< Gist:

> Head Note:

? Cases referred:

1) AIR 1991 SC 532

2) AIR 1993 SC 2486

3) (1993) 4 SCC 357

4) (1994) 6 SCC 98

5) (1995) 3 SCC 270

6) (2001) 8 SCC 574

7) (2009) 2 SCC 592

8) 2024 0 Supreme (SC) 225

9) AIR 1979 SC 49,51

This Court made the following:

Page 3 of 16

APHC010041212025

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3331]

FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION NO: 2150/2025

Between:

Dr. M. Penchalaiah, ...PETITIONER

AND

State Of Andhra Pradesh and Others ...RESPONDENT(S)

Counsel for the Petitioner:

1. P V KRISHNAIAH

Counsel for the Respondent(S):

1. GP FOR SERVICES IV

2. GP FOR SERVICES I

3. G V S KISHORE KUMAR

The Court made the following:

ORDER

The above Writ Petition is filed impugning the G.O.Rt.No.781

Health, Medical & Family Welfare (B.I) Department dated 21.12.2024, as

modified by G.O.Rt.No.1 Health, Medical & Family Welfare (B.I)

Department dated 01.01.2025, whereby the petitioner was transferred

Page 4 of 16

and G.O.Rt.No.782 Health, Medical & Family Welfare (B.I) Department

dated 21.12.2024 issued by 1

st

respondent transferring the 5

th

respondent to the place of petitioner, as illegal, arbitrary and violative of

Article 14, 16 and 21 of the Constitution of India.

2. a) Averments in the affidavit, in brief, are that the petitioner was

initially appointed as Civil Assistant Surgeon on 06.01.1992. He was

promoted to Deputy Civil Surgeon on 01.12.2007 and Civil Surgeon on

23.10.2019. The petitioner was posted as Additional DM & HO Chittoor,

and subsequently transferred and posted as DM & HO, Nellore vide

G.O.Rt.No.371, Health, Medical & Family Welfare Department dated

06.05.2022.

b) Be that as it may, the 1

st

respondent promoted 21 Deputy Civil

Surgeons (General Line) for the panel year 2023-2024 and issued

posting orders vide G.O.Rt.No.782 dated 21.12.2024, wherein the 5

th

respondent was posted as DM & HO, Nellore in the petitioner‟s place.

The petitioner was transferred vide G.O.Rt.No.781 dated 21.12.2024 to

Rampachodavaram, A.S.Raju District. Impugning the said transfer

orders and also the transfer of the 5

th

respondent in the place of the

petitioner, the petitioner filed W.P.No.30642 of 2024. Pending the said

writ petition, the 1

st

respondent issued G.O.Rt.No.1 HM & FW

Department dated 01.01.2024 modifying the transfer of petitioner from

Rampachodravaram, A.S. Raju District by C.S.R.M.O 300 Bedded Super

Speciality Hospital, Kadapa in the existing vacancy caused due to

unwillingness letter submitted by Dr.K.Padmavathi, Deputy DM & HO,

Markapur, Prakasam District. The petitioner assailed his transfer as

malafide, without prior concurrence and stigmatic. The petitioner was

Page 5 of 16

transferred at the fag end of his career i.e. before one year of his

retirement.

c) In respect of the transfer of the 5

th

respondent to the place of the

petitioner, the petitioner contended that the respondent authorities failed

to adhere to the procedure contemplated in G.O.Ms.No.273 HM & FW

(02) Department dated 21.05.1999 and G.O.Rt.No.780 HM & FW (B1)

Department dated 15.09.2014. The 5

th

respondent does not have the

experience to hold the post of DM & HO.

3. a) A counter affidavit was filed on behalf of 1

st

respondent. It was

contended, interalia, that the Government took a comprehensive view of

the performance of DM & HOs in the State. Certain DM & HOs are not

performing their duties up to the mark and are poor in achieving the

desired targets as per key performance indicators. As such, the

Government, keeping in mind, that there is a ban on transfers, circulated

the file in e-office to the Chief Minister through the Minister for Health,

Medical and Family Welfare duly appraising the facts and the Chief

Minister approved on 20.12.2024. Accordingly, transfers and posting

orders are issued including the petitioner and 5

th

respondent. The

transfer of the petitioner is made on administrative grounds. The

concurrence of the Finance Department was obtained vide

U.O.No.FIN01-HR0PDPP (TRPO)/188/2024 -HR-I (2665746), dated

30.12.2024, as the secretariat instance of e-office was not available from

21.12.2024 to 28.12.2024 due to migration of e-office system to the latest

version. The Government issued a concurrence order vide

G.O.Rt.No.784, HM & FW (B1) Department dated 31.12.2024.

b) It was pleaded in the counter affidavit that the 5

th

respondent

has the required experience to be appointed as DM & HO. Accordingly,

Page 6 of 16

counselling/interview was conducted on 13.12.2024 to 21 Deputy Civil

Surgeons (Promotees) and options were obtained on the same day as

per the available existing vacancies. Though the 5

th

respondent opted

separate place of posting on her choice during the counselling, keeping

in view the recommendations of the screening committee, she was

posted as DM & HO, Nellore on promotion.

4. A separate counter affidavit was filed on behalf of the 5

th

respondent almost reiterating the contentions regarding experience and

the selection process.

5. Heard Sri P.V.Krishnaiah, learned counsel for the petitioner, Sri

K.Ramalingeswara Rao, learned Government Pleader for Services-II for

respondents 1 to 4 and Sri G.V.S.Kishore Kumar, learned counsel for 5

th

respondent.

6. Learned counsel for the petitioner while reiterating the contentions,

as per the averments in the affidavit, would further contend that the

transfer of the petitioner is punitive. The 5

th

respondent did not opt for DM

& HO, Nellore and in fact, the 5

th

respondent opted for other three places,

since the post of DM & HO, Nellore was not vacant by that time. He

would submit that the respondent authorities failed to adhere to the

procedure laid down in G.O.Ms.No.780 dated 15.09.2014.

7. Learned Government Pleader for Services-II would submit that the

transfer of the petitioner was on administrative grounds and the 5

th

respondent was posted in the place of the petitioner by following due

procedure. The respondent authorities followed the procedure and

promoted the 5

th

respondent as DM & HO and there was no infraction in

the procedure. Learned Government Pleader for Services-II submitted

Page 7 of 16

the file relating to the transfer of the petitioner as well as the promotion of

the 5

th

respondent and also the posting of the 5

th

respondent as DM &

HO, Nellore and other similarly situated candidates. Learned

Government Pleader for Services-II, across the bar, submitted the

complaint made by one Sunkarla Jayaramudu against the petitioner

making certain allegations and the inquiry report submitted by the inquiry

officer dated 29.12.2024 received by the office of the Director of Public

Health & Family Welfare, Vijayawada on 02.01.2025. A copy of the

same has also been handed over to the counsel representing Sri

Krishnaiah in the Court.

8. Now, the points for consideration are:

1) Whether the proceedings impugned i.e. transfer of the

petitioner legally sustainable or punitive?

2) Whether the transfer and posting of the 5

th

respondent as

DM & HO legally sustainable?

9. It is a settled principle of law that the transfer of a Government

servant, appointed to a particular cadre of transferable posts, from one

place to another is an incident of service. No Government servant or

employee of public undertaking has a legal or vested right to be posted at

any particular place. Transfer from one place to another is generally a

condition of service and the employee has no choice in the matter and it

is the prerogative of the employer. Transferring from one place to another

is necessary for the public interest and efficiency in public administration.

Normally courts are chary to interfere with an order of transfer made for

administrative reasons. However, if an order of transfer is found to be an

outcome of a mala fide exercise of power or for extraneous

considerations, the Court can interfere with such transfers.

Page 8 of 16

10. The Hon‟ble Apex Court in Shilpi Bose v. State of Bihar

1

,

observed thus:

“4. In our opinion, the Courts should not interfere with a transfer

Order which are made in public interest and for administrative

reasons unless the transfer Orders are made in violation of any

mandatory statutory Rule or on the ground of malafide. A

Government servant holding a transferable post has no vested right

to remain posted at one place or the other, he is liable to be

transferred from one place to the other. Transfer Orders issued by

the competent authority do not violate any of his legal rights. Even if

a transfer Order is passed in violation of executive instructions

or Orders, the Courts ordinarily should not interfere with the

Order instead affected party should approach the higher

authorities in the Department. If the Courts continue to interfere

with day-to-day transfer Orders issued by the Government and its

subordinate authorities, there will be complete chaos in the

Administration which would not be conducive to public interest."

(emphasis is mine)

11. In State of Punjab vs. Joginder Singh Dhatt

2

, the Hon‟ble Apex

Court observed as follows:

“3. … It is entirely for the employer to decide when, where, and at

what point of time a public servant is transferred from his present

posting …”

12. In Union of India and Others vs. S.L. Abbas

3

, the Hon‟ble Apex

Court observed that the scope of judicial review is available when there

1

AIR 1991 SC 532

2

AIR 1993 SC 2486

3

(1993) 4 SCC 357

Page 9 of 16

is a clear violation of statutory provision or the transfer is swayed by

mala-fide etc., It was observed as follows:

“7. Who should be transferred where, is a matter for the

appropriate authority to decide. Unless the order of transfer is vitiated

by mala-fides or is made in violation of any statutory provisions, the

court cannot interfere with it. While ordering the transfer, there is no

doubt, the authority must keep in mind the guidelines issued by the

Government on the subject...”

13. In N.K. Singh vs. Union of India and Others

4

, the Hon‟ble Apex

Court considered the aspect of the transfer of an employee, the

prerogative of an employer regarding transfer observed as follows:

“23. … Assessment of worth must be left to the bonafide decision

of the superiors in service and their honest assessment accepted as

a part of service discipline. Transfer of a government servant in a

transferable service is a necessary incident of the service career.

Assessment of the quality of men is to be made by the superiors

taking into account several factors including suitability of the person

for a particular post and exigencies of administration. Several

imponderables requiring the formation of a subjective opinion in that

sphere may be involved, at times. The only realistic approach is to

leave it to the wisdom of the hierarchical superiors to make that

decision. Unless the decision is vitiated by mala fides or infraction of

any professed norm or principle governing the transfer, which alone

can be scrutinized judicially, there are no judicially manageable

standards for scrutinizing all transfers and the courts lack the

necessary expertise for personnel management of all government

4

(1994) 6 SCC 98

Page 10 of 16

departments. This must be left, in the public interest, to the

departmental heads subject to the limited judicial scrutiny indicated.”

The Apex Court further observed that:

“24. … Challenge in courts of a transfer when the career

prospects remain unaffected and there is no detriment to the

government servant must be eschewed and interference by courts

should be rare, only when a judicially manageable and permissible

ground is made out. This litigation was ill-advised.”

14. In the State of M.P. and another Vs S.S.Kourav and others

5

, the

Hon‟ble Apex Court held as follows:

“The courts or tribunals are not appellate forums to decide on

transfers of officers on administrative grounds. It is for the

administration to take appropriate decisions and such decisions shall

stand unless they are vitiated either by mala fides or by extraneous

consideration without any factual background foundation. In this case

transfer order having been issued on administrative grounds,

expediency of those orders cannot be examined by the Court.”

15. In National Hydroelectric Power Corporation Ltd. Vs Shri

Bhagwan

6

, it was observed as follows:

“No government servant or employee of a public undertaking has any

legal right to be posted forever at any one particular place since the

transfer of a particular employee appointed to the class or category of

transferable post from one place to other is not only an incident but a

condition of service, necessary too in public interest and efficiency in

the public administration. Unless an order of transfer is shown to be

5

(1995) 3 SCC 270

6

(2001) 8 SCC 574

Page 11 of 16

an outcome of mala fide exercise of power or stated to be in violation

of statutory provisions prohibiting any such transfer, the Courts or the

tribunals cannot interfere with such orders as a matter routine, as

though they are the appellate authorities substituting their own

decisions for that of the management, as against such orders passed

in the interest of administrative exigencies of the service concerned.”

16. In Somesh Tiwari Vs. Union of India and others

7

, the Hon‟ble

Apex Court held thus:

“19. Indisputably an order of transfer is an administrative order.

There cannot be any doubt whatsoever that transfer, which is

ordinarily an incident of service should not be interfered with, save in

cases where inter alia mala fide on the part of the authority is proved.

Mala fide is of two kinds - one malice in fact and the second malice in

law.

20. The order in question would attract the principle of malice in

law as it was not based on any factor germane for passing an order

of transfer and based on an irrelevant ground i.e. on the allegations

made against the appellant in the anonymous complaint. It is one

thing to say that the employer is entitled to pass an order of transfer

in administrative exigencies but it is another thing to say that the

order of transfer is passed by way of or in lieu of punishment. When

an order of transfer is passed in lieu of punishment, the same is liable

to be set aside being wholly illegal.”

17. Recently the Hon‟ble Apex Court in Sri Pubi Lombi Vs. The State

of Arunachal Pradesh and Others

8

, reversed the judgment of the

Division Bench of the High Court and upheld the order of the learned

7

(2009) 2 SCC 592

8

2024 0 Supreme (SC) 225

Page 12 of 16

single Judge, wherein the learned single Judge declined to interfere in a

transfer. The Apex Court observed thus:

“10. In view of the foregoing enunciation of law by judicial decisions

of this Court, it is clear that in absence of (i) pleadings regarding

mala-fide, (ii) non-joining the person against whom allegation are

made, (iii) violation of any statutory provision (iv) the allegation of the

transfer being detrimental to the employee who is holding a

transferable post, judicial interference is not warranted. In the sequel

of the said settled norms, the scope of judicial review is not

permissible by the Courts in exercising of the jurisdiction under

Article 226 of the Constitution of India.”

18. In the case at hand, the main contention of the petitioner is that the

transfer proceedings suffer from legal malice. Before proceeding further

let the Court examine what is legal malice or malice in law.

19. Malice as stated in the Advance Law of Lexicon, 3

rd

Edition by P.

Ramanatha Aiyar read as follows:

"Malice - Unlawful intent Will; intent to commit an unlawful act or

cause harm, Express or actual malice is ill will or spite towards the

plaintiff or any indirect or improper motive in the defendant's mind at

the time of the publication which is his sole or dominant motive for

publishing the words complained of. This must be distinguished from

legal malice or malice in law which means publication without law full

excuse and does not depend upon the defendant's state of mind.

(1) The intent, without justification or excuse, to commit a wrongful

act. (2) Reckless disregard of the law or of a person's legal rights. (3)

will: wickedness of heart. This sense is most typical in non-legal

contexts".

Page 13 of 16

20. Malice in the legal sense imports (I) the absence of all elements of

justification, excuse or recognized mitigation, and (2) the presence of

either (a) an actual intent to cause the particular harm which is produced

or harm of the same general nature, or (b) the wanton and wilful doing of

an act with awareness of a plain and strong likelihood that such harm

may result. Malice, in its legal sense, does not necessarily signify ill-will

towards a particular individual, but denotes that condition of mind which

is manifested by the intentional doing of a wrongful act without just cause

or excuse. Therefore, the law implies malice where one deliberately

unlawfully injures another.

21. Malice in its legal sense means malice such as may be assumed

from the doing of a wrongful act intentionally but without just cause or

excuse, or for want of reasonable or probable cause.

(S.R.Venkaraman Vs Union of India

9

).

22. In the case at hand, the petitioner was transferred to Nellore as

DM& HO vide Ex P7 dated 06.05.2022. During general transfers, the

petitioner was not transferred. Later, it seems, a preliminary inquiry was

conducted based on certain allegations, and the petitioner also

participated in the inquiry.

23. As seen from the report submitted by the inquiry authority against

the petitioner, the petitioner, the DM & HO deputed employees from one

place to other places without the permission of the HOD concerned. The

petitioner also failed to oversee the administration. The inquiry officer

recommended that all the deputations/work orders given by the DM &

HO, Nellore, be cancelled and disciplinary action be initiated for violating

9

AIR 1979 SC 49, 51

Page 14 of 16

the instructions of DPH & FW willfully. The deputation orders given by the

DM & HO to the Senior Assistants working in the establishment section

by name, Mahesh, Saritha and Srikanth to be cancelled as they are not

justifiable. The deputation orders given by the RDM & HS to one

Venkateswara Rao, Office Superintendent, are also to be cancelled. The

other allegation is that the petitioner connived Dr.Vamsi Krishna Suman,

former Medical Officer, PHC, Krishnapuram, pursued regular PG in NMC,

Nellore while in service (later resignation was accepted), in drawing pay

and allowances. Even the inquiry officer recommended recovery of the

pay and allowance for 29 months.

24. It is pertinent to mention here that Dr.Vamsi Krishna Suman

prosecuted the PG course while discharging duties as Medical Officer,

PHC, Krishnapuram as Drawing and Disbursing Officer (DDO), he has

drawn and paid the salary from 05.05.2022 to September 2024.

25. This Court is not relying on the said report to adjudicate the issue

except to mention the same since it was passed on.

26. Of course, in the transfer proceedings, it was not mentioned

anything about the inquiry, however, it was mentioned that the transfer is

on administrative grounds. Though the learned counsel for the petitioner

would contend that the transfer order, qua, the petitioner suffers from

legal malice, failed to demonstrate any instances in that regard. A total of

seven DM & HOs were transferred vide G.O.Rt.No.781 dated 21.12.2024

and thereafter the petitioner was again transferred to another place by

way of G.O.Rt.No.1 dated 01.01.2025. The competent authority affected

the transfer on administrative grounds.

Page 15 of 16

27. Though the learned counsel would contend that, reasons were not

assigned, except using the words „administration‟ no precedents were

cited in support of the said contention. In fact, a Division Bench of this

Court in W.A.No.325 of 2019 dated 15.10.2019, observed that no

reasons need to be mentioned in transfer proceedings.

28. The note file produced before this Court would disclose that the

note was put up against certain officers working as DM & HOs on

10.12.2024, wherein the petitioner was shown one among them. In the

note file, it was mentioned that the officers shown are facing certain

allegations and charges pending and hence, the transfer on

administrative grounds is required. In fact, the note file also disclosed

promotions and transfers of 21 Deputy Civil Surgeons. It is a fact that

none of the promotees opted for the place of DM & HO, Nellore including

the 5

th

respondent.

29. As seen from the note file, since there is a ban on transfers, the

proposals were forwarded to the Chief Minister and the same was

approved on 20.12.2024 as per the Business Rules. However, the

financial concurrence was obtained on 30.12.2024, due to the reasons

explained in the counter, and thereafter G.O. was issued on 30.12.2024.

Once the Chief Minister approves the transfer, as per business rules, the

financial concurrence is only a formality. In fact, due to some technical

delay, the government order was issued with some delay. The delay, if

any, is of no consequence, because of the approval by the Chief

Minister.

30. Thus, the discussion supra, this Court is of the considered opinion

that the transfer of the petitioner neither suffers from legal malice nor is

punitive. The employer is the best person to choose the employee to

Page 16 of 16

work at a particular place. The employee cannot as a matter of right,

assail the transfer orders unless malice in law is established.

31. The petitioner also challenged the transfer of the 5

th

respondent as

DM& HO to Nellore. Once the petitioner transfer doesn‟t suffer from any

malice or punitive, in the considered opinion of this Court, the petitioner

has no locus to challenge the transfer of the 5

th

respondent. Regarding

the experience of the 5

th

respondent to hold the post of DM& HO, the 1

st

and 2

nd

respondents considered all the aspects and thereafter only

posted the 5

th

respondent, though the petitioner did not opt for Nellore at

the counselling.

32. Given the discussion supra, this Court does not find any merit in

the writ petition and the writ petition is liable to be dismissed.

33. Accordingly, the Writ Petition is dismissed. No costs.

However, this order will not preclude the petitioner from making a

representation to the 1

st

respondent ventilating, grievance if any

regarding the transfer. If such a representation is made, the learned 1

st

respondent or the concerned shall consider the same, strictly as per the

Rules.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

__________________________

JUSTICE SUBBA REDDY SATTI

Note: LR copy to be marked

B/O

PVD